휴대폰의 압수와 저장정보의 탐색

In principle the seizure is only permitted with a prior warrant. But in case of arrest scene, crime scene, and emergent arrest it is possible to seize certain things subject to control by a post warrant. However the seizure of voluntary submission is available without prior or post warrants. In order to use confiscated materials as evidence, whether or not a warrant is issued, the legality of seizure is separately reviewed by the trial court. It is unacceptable to use the form of voluntary submission instead of substantial emergent seizure in order to circumvent the control by a post warrant, voluntary submission itselt is recognized as an independent exception to warrant principle. Although it is advisable to obligate the prior notice of the right to refuse seizure, but rather it is important to secure the voluntariness of submission by strictly interpreting the consent requirement. If the submission is made by force or compelling it should be identified as the illegally obtained evidence and denied the admissibility of evidence. The prosecutor is burdened to prove the voluntariness of submission by a significant proof. The mobile phone itself is not identical to the electronic information stored in the mobile phone regarding evidence law. Even if the mobile phone is confiscated as a voluntary submission, a prior warrant is essential to search the stored information. Especially the relevance to the case must be confirmed, and the right to participate must be guaranteed. It is necessary to develop a digital forensic technique suitable for the characteristics of mobile phones.